LAWSUIT UPDATE: OOIDA targets forced lumping with SuperValu case

| Wednesday, November 15, 2006

Nov. 15, 2006 - Imagine thousands of truckers being forced to pay millions of dollars in lumping fees and you'll begin to understand part of what's at stake as OOIDA's legal team pushes forward with a full-court press against SuperValu Inc.

"It's important to recognize that a victory in this case will benefit not only the truckers who were actually charged the unloading fees, but all truckers because of the clear signal it will send throughout the industry that these types of abuses will no longer be tolerated," said Jim Johnston, president and CEO of the Owner Operator Independent Drivers Association.

On Nov. 3, the attorneys for the truckers turned up the heat in U.S. District Court in Minnesota. They filed a motion arguing that SuperValu's lumping policy so blatantly violated federal law that the judge presiding over the case should skip the trial phase on a key issue and grant a "partial summary judgment" - a ruling in favor of the truckers.

"The unloading statute prohibits a receiver from requiring an owner or operator to employ and pay for lumping services," states the truckers' motion against the national grocery distributor/retailer.

" . SuperValu's policy requiring proof of substantially more insurance than the statutory minimum resulted in a requirement by SuperValu for drivers to hire the lumping service in violation of 49 U.S.C. Section 14103 (a) and (b)."

The truckers' legal team is poised to keep the pressure on in the courtroom during a hearing Nov. 28 on several pending motions.

One of those motions is a request that the federal judge throw out one of SuperValu's defense strategies. Randall S. Herrick-Stare, the lead attorney on the truckers' case, said SuperValu's "failure to mitigate" defense missed the mark completely because it relates to cases in which "damages" are being sought. OOIDA is not seeking "damages" in this case.

Instead, the Association wants SuperValu to "disgorge," or return to drivers, the money it received when it required drivers to pay for lumping costs in violation of federal law. OOIDA is also asking the court to order SuperValu to discontinue its illegal lumping practices.

In another motion, scheduled to be heard in court Nov. 28, OOIDA asks the court to deny SuperValu's request to stall background research - which is known as "discovery" in legal lingo.

And, Herrick-Stare said another motion set for hearing Nov. 28 asks the court to "compel" SuperValu's lawyers to stop dragging their feet and provide documents and information as called for in the discovery phase of the case.

"SuperValu wants to delay discovery on some issues until after the court rules on class certification," said Herrick-Stare, adding that a hearing on class certification is set for Dec. 18.

OOIDA and individual truckers filed the lawsuit a year ago, contending that a SuperValu policy that was in effect for several months in 2005 violated federal law because it forced truck owners and operators to pay for lumping services.

The Association has asked that the case be certified as a class action to include all owners and operators in interstate commerce who delivered goods to SuperValu after March 28, 2005, and were required by SuperValu to accept assistance in unloading their trucks and were required to pay lumpers for lumping services.

Following is the excerpt from the U.S. Code, Section 14103 (a) and (b) that is cited in the complaint against SuperValu.

"(a) Shipper responsible for assisting. - Whenever a ... receiver of property requires that any person who owns or operates a motor vehicle transporting property in interstate commerce ... be assisted in the ... unloading of such vehicle, the ... receiver shall be responsible for providing such assistance or shall compensate the owner or operator for all costs associated with securing and compensating the ... persons providing such assistance.

"(b) Coercion prohibited. - It shall be unlawful to coerce or attempt to coerce any person providing transportation of property by motor vehicle for compensation in interstate commerce ... to ... unload any ... such property ... from such vehicle or to employ or pay ... persons to ... unload any part of such property ... from such vehicle ...."